Wharton v Bancroft and Others: ChD 30 Jan 2012

The will was challenged for want of knowledge and approval of it by the testatrix.
Held: Norris J set out the correct approach: ‘(a) The assertion that Mr Wharton did not ‘know and approve’ of the 2008 Will requires the Court, before admitting it to proof, to be satisfied that Mr Wharton understood what he was doing and its effect (that is to say that he was making a will containing certain dispositive provisions) so that the document represents his testamentary intentions.
(b) The burden lies on Maureen to show that Mr Wharton knew and approved of the 2008 Will in that sense.
(c) The Court can infer knowledge and approval from proof of capacity and proof of due execution (neither of which the Daughters now dispute).
(d) It is not in issue that the 2008 Will was read over to Mr Wharton. The Court of Appeal observed in Gill v Woodall at paragraph [14], that, as a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read over to the testator, raises a very strong presumption that it represents the testator’s intentions at the relevant time.
(e) But proof of the reading over of a will does not necessarily establish ‘knowledge and approval’. Whether more is required in a particular case depends upon the circumstances in which the vigilance of the Court is aroused and the terms (including the complexity) of the Will itself.
(f) So the Daughters must produce evidence of circumstances which arouse the suspicion of the Court as to whether the usual strong inference arising from the manner of signature may properly be drawn.
(g) It is not for them positively to prove that he had some other specific testamentary intention: but only to lead such evidence as leaves the court not satisfied on the balance of probabilities that the testator understood the nature and effect of and sanctioned the dispositions in the will he actually made. But this evidence itself must usually be of weight, because in general the Court is cautious about accepting a contention that a will executed in the circumstances described is open to challenge.
(h) Attention to the legal and evidential burden can be decisive where the evidence is in short supply. But in other circumstances identifying the legal and evidential burden is simply a tool to enable the probate judge to identify and weigh the relevant elements within the evidence, the ultimate task being to consider all the relevant evidence available and, drawing such inferences as the judge can from the totality of that material, to come to a conclusion as to whether or not those propounding the will have discharged the burden of establishing that the document represents the testamentary intentions of the testator.’
Norris J
[2012] EWHC 91 (Ch)
Cited by:
CitedSchrader v Schrader ChD 11-Mar-2013
Brothers contested their late mother’s will, one saying that the later one was made when she lacked capacity and was under the undue influence of the other.
Held: The evidence of one brother that he had taken no significant part in the . .

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Updated: 21 March 2021; Ref: scu.450561